Disposed

Sri Betadappa v. Smt Shankarawwa

Karnataka HC10 Jul 2023WP/104115/2023

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the dismissal of an application for stay of execution proceedings. The Court held that the remedy lies before the Senior Civil Judge in the pending miscellaneous petition rather than through a writ.

What did the court decide?

Writ petition disposed; liberty reserved; Executing Court directed not to precipitate matter pending stay order from Senior Civil Judge within two weeks.

Sri Betadappa Vs Smt Shankarawwa — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:6928 WP No. 104115 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO.104115 OF 2023 (GM-CPC)

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BETWEEN:

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SRI BETTADAPPA S/O. POMANNA DODDAMANI, AGE: 50 YEARS, OCC: AGRICULTURE R/O. BASAPURA VILLAGE, TQ: AND DIST: KOPPAL-583231.

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…PETITIONER

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(BY SRI B.C.JNANAYYASWAMI, ADVOCATE)

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AND:

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: High Court of Karnataka, Dharwad

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SMT. SHANKARAWWA @ SAKRAVVA @ LAKSHMIDEVI W/O. NINGAPPA, AGED ABOUT 48 YEARS, OCC: HOUSEHOLD, R/O. BASAPUR VILLAGE, TQ: AND DIST: KOPPAL, NOW RESIDING AT SOMASAMUDRA VILLAGE, TQ: AND DIST: BALLARI-583101.

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SRI AMBANNA S/O. GOLAPPA BANGLI, AGED ABOUT 27 YEARS, OCC: AGRICULTURE, R/O. BASAPUR VILLAGE, TQ: AND DIST: KOPPAL-583231.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE IN THE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER

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2 - NC: 2023:KHC-D:6928 WP No. 104115 of 2023

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PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND CJM, KOPPAL IN IA NO.II ARISING OUT OF EXECUTION CASE NO. 94/2022 AS PER ANNEXURE-E, DATED 29.05.2023, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the Judgment Debtor who was

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the defendant in original suit O.S.No.20/2021, petitioner is questioning the order passed by learned Senior Civil Judge and CJM, Koppal on I.A.No.II, in Execution Case No.94/2022, filed by petitioner/Judgment debtor seeking to stay the Execution Case proceedings, till disposal of the Civil Misc.No.8/2022.

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This Court is not inclined to issue notice to the respondents as this Court is not passing any adverse orders as against respondents. Hence, it is disposing of at the preliminary stage itself for the following reasons.

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Parties to the proceeding shall be referred to as

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plaintiff and defendants.

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3 - NC: 2023:KHC-D:6928 WP No. 104115 of 2023

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Pursuant to the said suit filed by the plaintiff for the relief of specific performance of the contract of agreement of sale dated 05.04.2018 against petitioner/ defendant No.1 who is the absolute owner of the suit schedule property. On issuance of suit summons, defendant Nos.1 and 2 appeared before the Court, but did not file their statement of objections. The trial Court proceeded with the evidence and passed the judgment in favour of plaintiff by decreeing suit directing the defendants to execute registered sale deed in respect of suit schedule property in favour of plaintiff by receiving balance sale consideration amount of Rs.1,50,000/- within a period of 3 months from the date of the orders and to handover the possession of suit schedule property to the plaintiff. The original suit came to be decreed on 04.07.2022.

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Aggrieved by the judgment and decree in the original suit stated supra , defendants filed Misc. Petition No.8/2022 Under Order 9 Rule 13 read with Section 151 of

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4 - NC: 2023:KHC-D:6928 WP No. 104115 of 2023

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Code of Civil Procedure seeking to set-aside the judgment and decree and to restore the suit to its original file. It is submitted that while filing this petition there was a delay in filing the petition and hence, an application for condonation of delay came to be filed along with the miscellaneous petition under Order 9 Rule 13 R/w Section 151 of CPC.

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As there was no order of stay of operation of judgment and decree, the plaintiff preferred an Execution Petition No.94/2022 on 15.12.2022. In the Execution Petition, defendant Nos.1 and 2 filed an application under Section 151 of CPC seeking to stay the further proceedings of Execution Petition, till final disposal of the Civil Miscellaneous Petition No.8/2022. This application preferred by the defendants came to be dismissed by order dated 29.05.2023 which is challenged by the petitioner herein.

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It is not in dispute that defendant Nos.1 and 2 though participated in the suit proceedings, did not contest

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5 - NC: 2023:KHC-D:6928 WP No. 104115 of 2023

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the same by filing written statement or by way of crossexamination of PW.1. Hence, suit came to be decreed without there being any contest. Within two months of the judgment and decree in O.S.No.20/2021, defendants preferred Miscellaneous Petition Under Order 9 Rule 13 R/w Section 151 of CPC to set-aside the judgment and decree and permit the defendants to contest the original suit on merits and permit them to file their written statement.

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It is a fact that the said Miscellaneous Petition is pending adjudication along with an application for condonation of delay. Defendants were unable to obtain an order of stay of the impugned judgment and decree passed in O.S.No.20/2021, despite pendency of the Civil Miscellaneous Petition No.8/2022, since there is no stay granted in the Civil Miscellaneous Petition preferred by the defendants, the plaintiff has moved the Execution Petition for enforcement of the judgment and decree.

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Aggrieved by initiation of Execution Petition, defendants filed an application under I.A.No.II before Executing Court for stay of further proceedings of the Execution Petition, till disposal of the Miscellaneous Petition. This application of defendants is rejected by Executing Court on the ground that the defendants have not been serious in prosecuting the Miscellaneous Petition and have been taking adjournments time and again. Hence, since no stay order is granted in Civil Miscellaneous Petition, mere pendency of the Civil Miscellaneous petition cannot be a ground to stay the execution proceedings. Accordingly, dismissed the application of the defendants. Thereafter, the D.Hr has filed a memo to deposit the balance sale consideration amount which has been allowed by the Executing Court. The next process would be to execute the decree since the entire sale consideration amount is paid.

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The petitioner/defendant No.1 ought to have moved and pursued his remedy before the Senior Civil

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Judge at Koppal in the Civil Miscellaneous No.8/2022 to obtain an order of stay of the impugned judgment and decree in O.S.No.20/2021, but has rather approached this Court aggrieved by the order of the Executing Court rejecting his application for stay of the Execution Case proceedings.

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I am in agreement with learned counsel for the petitioner that if the execution proceedings are not stayed, the very purpose of initiation of the Civil Miscellaneous Petition by the defendants gets frustrated as it will not survive anymore for consideration, if the impugned judgment and decree is executed. However, the remedy lies before the Senior Civil Judge, Koppal in the Civil Miscellaneous Petition No.22/2023 to hear the petitioner herein and the respondents and pass suitable orders in the said Civil Miscellaneous petition. But, in view of the fact that the Executing Court has proceeded two steps ahead i.e,. rejecting the application of stay of the petitioner/defendant and accepting the balance sale

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consideration amount, the petitioner is under precarious situation.

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It is the duty of the petitioner to approach the

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Senior Civil Judge at Koppal and expedite his matter one way or the other for the execution proceedings to proceed further. In view of the above discussion, I proceed to pass

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the following:

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ORDER

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i) This petition is disposed. ii) Liberty is reserved to the petitioner to

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approach the Civil Judge (Senior Division) at Koppal in Civil Miscellaneous Petition No.8/2022

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to agitate the application for stay of the impugned judgment and decree in O.S.No.20/2021 and so also the execution proceedings as the matter is already seized before the Senior Civil Judge at Koppal in Civil Miscellaneous No.8/2022.

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iii) The Senior Civil Judge at Koppal in Civil Miscellaneous No.8/2022 shall hear the petitioner and the respondents and pass suitable orders on the application for grant of stay within a period of two weeks from today on the petitioner making a motion before the Senior Civil Judge at Koppal.

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iv) Till the application is decided by Senior Civil Judge at Koppal in Civil Miscellaneous No.8/2022, the Executing Court shall not precipitate the matter.

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v) The Senior Civil Judge at Koppal shall

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dispose of the matter in the time bound manner within a period of two weeks on the application for grant of stay in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 25

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Sri Betadappa v. Smt Shankarawwa

Case brief

What is this about?

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Sri Betadappa v. Smt Shankarawwa

Case brief

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